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4. Keynote speech by Dr Marco Buschmann, Federal Minister of Justice, at the “German Law Journal – 25th Anniversary” event, of the Max Planck Society in Berlin

DokumenttypDocTypeRede | Datum20. September 2024Keynote speech by Dr Marco Buschmann, Federal Minister of Justice, at the “German Law Journal – 25th Anniversary” event, of the Max Planck Society in Berlin

Anniversaries are always enjoyable occasions – their overall tone and atmosphere is often much more positive than we are used to in these challenging times!

Recently, I have had many opportunities to explain the theory of methodological optimism to which I personally subscribe: It is the belief that, if we work hard, we can change things for the better. I do not believe, as Hegel did, that things will somehow improve on their own, with the subtle cunning of reason and the help of great men. To me, moreover, Hegel's way of thinking involves too great a disregard for the suffering of the individual.

But I believe that we can change things for the better if we take action – if we work hard, pursue good ideas and then put them into practice.

We are all celebrating an example of this today. In the late 90s, when Russell Miller and Peer Zumbansen were working as clerks at the Federal Constitutional Court in Karlsruhe, they realised that lawyers around the world were increasingly coming into contact with other laws and legal systems. And they also observed that legal practitioners and scholars had few possibilities at the time to reflect on this enriching transnational dynamic. This is how they themselves described the situation back then.

So they decided there and then to create a bi-weekly newsletter on German constitutional law for an English-speaking readership. This newsletter quickly grew into the German Law Journal – now published in cooperation with Cambridge University Press and the leading online, peer-reviewed law journal of any subject matter. The superlatives are endless.

But the journal was never intended simply to explain German constitutional law. From the very beginning, it has been a forum for mutual transnational education and reflection, examining legal systems and legal cultures in all their diversity and variety. Anyone wishing to understand the latest developments in European law, international law and comparative law must follow this journal. It regularly covers other disciplines too, adding an interdisciplinary dimension to the international perspective.

As a constitutional jurist and Federal Minister of Justice, I would like to thank you and congratulate you for this excellent, important work.

Now, it should be emphasised that this need for a transnational and international perspective is not simply academic. It is, of course, a political necessity.

Sharing information, getting to know each other, learning from each other and remaining united despite our different legal cultures – these are all fundamental to the very survival of liberal democracy today.

We are currently witnessing the formation of a neo-authoritarian alliance; a new axis of autocracies who are united, more than anything else, by an explicit and often bloody disregard for the law – all in the service of unbridled power. And there is nothing that these autocracies want more than to sow division among the world's liberal democracies.

We cannot let ourselves be driven apart in a world where certain actors have a great interest in doing precisely that. China, for example, is constantly looking to drive a wedge between Germany and the US. I have experienced this myself as Justice Minister.

The idea of an independent Europe with the ability to defend itself is rightly at the top of the political agenda today. But the transatlantic relationship is still as important as ever.

It is still important that we understand each other’s legal thinking. It is still important that we do not drift apart; that we make ourselves understood. In Germany, we continue to appreciate and take inspiration from the world's oldest democracy.

What is more, there are still some major tasks to undertake. In my view, we have the mission of upholding international law. Is international law being reduced to a non-binding agreement? Or can we get sovereign states to commit to international instruments and at least stem the violence of war? Who, if not the US and Europe, can make the idea of international law a reality? The idea that states as political entities should also abide by rules. 

The law is contested and disputed even within Europe itself.

We have seen how constitutional courts have come under pressure in recent years, with efforts to transform them from guardians of the constitution into tools to serve parliamentary majorities. A whole host of tactics have been employed to attack the functioning and independence of constitutional courts.

Many of these are also conceivable in Germany. A majority in the Bundestag could, for example, come up with the idea of adding two more Senates to the Federal Constitutional Court on top of the existing two. These two new Senates could then be filled with jurists who are politically affiliated with the Bundestag majority. We have observed a similar phenomenon in Hungary.

In Poland, the retirement age for judges was lowered so that unwanted judges could be removed from office and replaced with those loyal to the government.

In Israel, we have all followed the debate on a judicial reform that would have weakened the constitutional court.

In Germany, we want to prevent such developments. As I am sure you are aware, we are planning to make the Federal Constitutional Court more resilient. I thought you might be particularly interested in this topic, given that the German Law Journal effectively originated at the Federal Constitutional Court in Karlsruhe. So this seems like a good opportunity to briefly describe what we are planning and why.

The most important thing is that we are not inventing any new rules or structures. Instead, we want to take key structural requirements that are unanimously recognised as having proven their worth, and elevate them from simple statutory law to constitutional status. In particular, I am talking about

• the status of the court and the term of office of the Justices (12 years)
• the age limit for Justices (68)
• the number of Justices (16) and the number of Senates (2)
• the single-term rule
• the continuation of a Justice’s official duties until the election of their successor
• the binding effect of the court’s decisions and
• the court’s right to establish its own rules of procedure.

After the great success story of the court, I believe we are doing what the authors of the Basic Law would have done if they had known what we know today.

We will hear from Adam Bodnar on this very topical issue in a moment. I am grateful for the positive and productive dialogue I have had with him since he took office. And I admire his prudent approach to the difficult task of reinstating the rule of law without creating deep new divisions.

There was a time when there seemed to be no alternative to liberal ideas on law and the constitution. In the post-1990 world, liberal thinking seemed to have prevailed. But by the time of the 2008 financial crisis, all of this had changed. We all know the story. It became possible, once again, to ask whether authoritarian approaches might be more successful and more effective after all. Of course, they are not. But we have to keep reminding people of the benefits of dependable rules.

History does not just move in one direction. We believe that our direction is the right one, but we must also work to demonstrate the worth of our constitutional and legal system. And this is where we need the transnational, illuminating spirit of the German Law Journal.

At the same time, we must never become so self-assured that we become blind to the weaknesses and dangers of our own system. The law must constantly self-reflect and re-evaluate its reach.

I will always praise and celebrate the achievement of liberal democracy in providing strong constitutional protection of the minority against the majority. But the law would do well to engage in continuous scrutiny of its relationship with democratic politics. For the law should not only put restrictions on, but also facilitate, democratic politics. 

We all know how differently these questions have been answered in the various democratic legal cultures around the world. And it is this kind of transnational reflection too that is in such great hands in the journal we are celebrating today.

Congratulations, and many thanks!